OPINION: Legal conflicts work both ways for Fulton DA Fani Willis

Fulton County District Attorney Fani Willis back in 2015, when she was the lead assistant DA prosecuting the massive Atlanta Public Schools test-cheating case. (Kent Johnson/ AJC 2015 file photo)
Fulton County District Attorney Fani Willis back in 2015, when she was the lead assistant DA prosecuting the massive Atlanta Public Schools test-cheating case. (Kent Johnson/ AJC 2015 file photo)

It’s why Willis seeks to hand off Brooks case but handle Trump case

Fulton County District Attorney Fani Willis has had a busy, if not momentous, stretch in her new job.

At the same time she tries to jettison the biggest case on her docket — the killing of Rayshard Brooks by an Atlanta cop — she also takes on what could become The Biggest Case Ever. That is, whether an ex-president should wear a jail jumpsuit for trying to steal an election. Or to be specific, determining whether it was illegal for Donald Trump to bluster and even intimidate Georgia Secretary of State Brad Raffensperger into finding him some votes.

And she’s barely into Month Two.

In January, Willis asked state Attorney General Chris Carr to recuse her office from the murder case against former police officer Garrett Rolfe, and a handful of criminal cases against other Atlanta cops, saying she had a conflict. The conflict was that her predecessor, Fulton’s longtime district attorney Paul Howard, had quickly, and very publicly, charged two cops in the Brooks killing last June and then held a nationally televised press conference/campaign speech.

At the time, the six-term incumbent was a flailing candidate running a losing campaign against Willis, once one of the brightest stars in his office. Back then, I called Howard’s maneuver “a wounded candidate using the death of a man killed by police to weave together a series of baldfaced prevarications and obfuscations to get past a challenger who has him on the ropes.”

Brooks had passed out in his car in a Wendy’s drive-thru. He was awakened by police and spoke cordially with the two cops for about 40 minutes until Rolfe tried to arrest him. Then Brooks fought like crazy, giving one cop a concussion, stealing his Taser, firing it at him, running away and finally firing the device at Rolfe, who then fired two fatal shots into Brooks’ back. The next night, the restaurant burned and Atlanta’s streets churned with anger and violence.

Rayshard Brooks' wife Tomika Miller speaks to members of the press on February 4, 2021, as state Rep. Erica Thomas (left) comforts her across street from the site of the Wendy's restaurant where an Atlanta police officer fatally shot Brooks in June. A coalition of elected officials, organizers and activists held the press conference to express their disappointment in newly elected Fulton County District Attorney Fani Willis. (Hyosub Shin / Hyosub.Shin@ajc.com)
Rayshard Brooks' wife Tomika Miller speaks to members of the press on February 4, 2021, as state Rep. Erica Thomas (left) comforts her across street from the site of the Wendy's restaurant where an Atlanta police officer fatally shot Brooks in June. A coalition of elected officials, organizers and activists held the press conference to express their disappointment in newly elected Fulton County District Attorney Fani Willis. (Hyosub Shin / Hyosub.Shin@ajc.com)

Credit: HYOSUB SHIN / AJC

Credit: HYOSUB SHIN / AJC

Willis contends that Howard poisoned the case so thoroughly that whatever she does — prosecute, reduce charges or drop them — it will be viewed with public anger and skepticism. And in legal issues there doesn’t have to be an actual conflict of interest. Just the perception of a conflict is often enough to get a case moved to another prosecutor or judge. Happens all the time.

But the attorney general, in what legal people say is a rare move, denied Willis’ attempt at recusal, saying the problems were with Paul Howard, not Willis. So the cases involving Atlanta cops remain hers. “The matters are personal to your predecessor,” Carr wrote, and “do not pertain to you or your office.”

ExploreState AG returns Rayshard Brooks case to Fulton DA

In essence, Carr was saying, Ms. DA, you wanted this job, now do it!

The attorney general then went about doing his job: His office sent out a press release criticizing President Joe Biden’s decision on the Keystone pipeline.

Willis told me there’s a big problem. “I legally agree with the recusal motion of (Rolfe’s) defense,” she said.

Noah Pines, the defense attorney, had called for Howard to be removed from the Brooks case. Pines says the motion still stands, adding “if the attorney general forces her to take the case, that could create an appeal.”

Willis said Howard’s campaign carpet-bombed Black radio with ads on the case. “The message sent repeatedly was that because police supported me, that I could not do what’s fair or right,” Willis said. “But I’m not bought by anybody.”

Because of that and other statements, Willis said a cloud of distrust will hover over any decision her office makes in the case, which has not gone to a grand jury.

ExploreFulton DA: Georgia AG wrong in handing back Brooks case

I spoke with half a dozen people in the legal community who said Carr’s decision was rare but not unheard of.

Jeff Davis, who used to head the State Bar of Georgia and also the state judicial watchdog agency, said both Willis and Carr are correct in their thinking, although the DA may be more right.

“Fani Willis is approaching this as a lawyer and sees it as an ethical question,” Davis said. “Chris Carr is approaching it as a public policy question or a legal duty question.”

Georgia Attorney General Chris Carr. (DAVID BARNES / DAVID.BARNES@AJC.COM)
Georgia Attorney General Chris Carr. (DAVID BARNES / DAVID.BARNES@AJC.COM)

Davis said Carr thinks “you create a wall, where all that stuff happened under Paul.” And now that Willis is in office, “it’s been cleared.” But Davis said Willis is “saying there’s no way to clear the stain.”

Danny Porter, the longtime Gwinnett County DA who was defeated last year, said he heard no other jurisdiction wanted to take the controversial, racially charged Brooks case off Fulton’s hands. The attorney general’s office, though, insists it did not try to peddle the case to others.

Porter said he would “think about” being appointed to the case if Carr offered it — which Porter added is unlikely since he’s white and seen as pro-police. (I think Porter just conflicted himself out of consideration.)

Porter described how he would handle the Brooks case. He’d call a special grand jury and present everything. “I’d be transparent,” he said. “I’d tell the media that ‘I’ll call these witnesses today,’ then I’d release the grand jury’s report and also quickly release the full transcripts.”

Richard Hyde, who worked as an investigator for two previous attorneys general, said he’d appoint a three-lawyer panel to investigate, review all the evidence, and make a decision to charge or not charge. The appointees would have to be racially diverse “people with integrity that no one can question.”

Hyde suggested Porter, former Georgia Supreme Court Justice Leah Ward Sears, and former U.S. Deputy Attorney General Larry Thompson. The latter two are African American.

“I’d love for fair people to take a look at the case,” said Rolfe’s defense attorney Pines. “Paul Howard, like Donald Trump, spewed misinformation. People still believe what he said.”

By “he,” Pines meant both Howard and Trump, which brings us back to the Really Big Case. (Well, potentially a big case, as many are skeptical that Trump’s bloviating was truly criminal.)

Lead by a Georgia state trooper, Georgia Secretary of State Brad Raffensperger (third from left) exits the Georgia State Capitol in downtown Atlanta following reports of threats on January 6, 2021. (Alyssa Pointer / Alyssa.Pointer@ajc.com)
Lead by a Georgia state trooper, Georgia Secretary of State Brad Raffensperger (third from left) exits the Georgia State Capitol in downtown Atlanta following reports of threats on January 6, 2021. (Alyssa Pointer / Alyssa.Pointer@ajc.com)

Credit: Alyssa Pointer / Alyssa.Pointer@ajc.com

Credit: Alyssa Pointer / Alyssa.Pointer@ajc.com

Willis said she has been contemplating an investigation into whether Georgia laws were broken when Trump tried to telephonically twist Raffensperger’s arm to dig up more votes in Georgia. She noticed that the secretary of state opened an investigation into the matter on Monday. But she believes that, yes, he has a conflict in that case.

“It seemed like Raffensperger appreciated that he was a witness (he was on the phone call) and so he was not the best person to do an investigation,” she said.

And so, two days later, she sent letters to Raffensperger, Gov. Brian Kemp and Lt. Gov. Geoff Duncan — all of whom resisted Trump’s efforts to undo the election — to preserve any possible evidence.

ExploreFulton’s DA opens criminal investigation into Trump attempt to overturn Georgia’s election

Why is Willis pushing such an investigation?

Willis said government has basic roles, such as keeping the public safe and protecting the integrity of elections.

“These two worlds have kind of merged,” she said, “I don’t have any choice but to move the way we have moved.”

Like I said, Fulton’s new district attorney is very busy. And with Atlanta just having a record year in murders, the office is about to get swamped.

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